On October 22, 2020, the Federal Court (FC) issued new Case and Trial Management Guidelines for Complex Proceedings (the FC Guidelines). These new consolidated FC Guidelines address many of the topics raised in the following earlier FC Notices to the Profession:
- Case management: Increased Proportionality in Complex Litigation before the Federal Court (June 24, 2015);
- Trial Management Guidelines (April 2017);
- Intellectual Property (experimental testing) (May 12, 2016); and
- Guidelines for Actions under the Amended PMNOC Regulations (September 21, 2017).
The FC Guidelines are divided in two sections: the first is a general section addressing complex proceedings, or proceedings which are expected to require at least five trial days, while the second is specific to actions proceeding under the PM(NOC) Regulations.
1. Complex Proceedings
The FC Guidelines address a number of topics on the road to trial, including: election for a short-notice trial; discovery planning, process, and limits on examinations; motions practice; expert reports and experimental testing; and pre-trial preparation.
The FC Guidelines differ from previous FC Notices to the Profession in a number of notable respects, including the following changes and additions:
- Electronic documents: Electronic production of documents is encouraged.
- Discovery planning: Parties are to make a bona fide effort to agree and set realistic timetables.
- Limits on discovery: Parties can no longer agree to extend the specified limit on number of days for oral examinations and will instead require an order of the Court.
- Outlining areas of agreement between experts: Parties are to “make bona fide efforts to agree on issues of fact and law, including interpretation/construction of science, technology and other expert evidence”.
- Expert reports to be relied upon at trial: Expert reports in chief must be filed at least two weeks prior to trial.
- Trial management conference: Timing and mode of delivery of trial documents are to be discussed during the trial management conference. Digital documents submitted via a USB key, with hyperlinks to case law, are encouraged.
- Early engagement: Counsel are “expected to make a bona fide effort to consult and engage experts early in the pre-trial stage to properly assess the case’s merit”, and “should also provide opposing counsel with early notice of their experts’ views”. In addition, in the context of objections to expert reports, the parties are now required, to exchange short statements of each expert’s proposed expertise.
- Proposed schedule for trial: Parties are to submit a proposed schedule for the use of trial time. The parties may agree to use a “chess clock” approach, as long as they provide “a schedule indicating the dates upon which each witness will be called”.
- Joint statement of issues: Parties are to make “a bona fide effort to prepare a joint statement of issues”, due two weeks before trial.
- Science and technology primer: Parties may now be required to provide “pre-trial science and technology primers”, either jointly or separately.
- Exchanging a description of proposed areas of testimony: Parties should “make a bona fide effort to discuss the use of witness statements and fact stipulations where cross-examination may not be necessary.”
- Agreed statement of facts and joint books of documents: Parties are to submit an agreed statement of facts and joint books of documents two weeks before trial.
- Testimony by videoconference: Request for testimony by videoconference for out-of-town witnesses scheduled to appear at in-person hearings should be made at least 60 days before trial.
- Written arguments: New strict limit of fifty pages, unless the parties are directed otherwise.
2. Actions under the PM(NOC) Regulations
Although actions under the PM(NOC) Regulations are subject to the FC Guidelines as a whole, the specific provisions addressing these cases prevail in the event of a conflict with the general guidelines. Notable changes and additions over the previous Guidelines for Actions under the Amended PMNOC Regulations include:
- Initial case management conference: The FC Guidelines refers to a new PMNOC Timetable Checklist setting out the procedural steps that should be addressed in the plaintiff’s requisition for the first case management conference, which is due within seven days of being served with the notice of intention to respond.
- Subsequent case management conferences: The FC Guidelines add that “[r]egular case management conferences will be convened to discuss the timetable and narrowing issues for trial.”
- Tutorial session: As in the general guidelines for complex proceedings, parties are encouraged to be proactive and identify circumstances where tutorial sessions may be helpful.
- Evidence at trial: The FC Guidelines elevate the expectation that parties will adduce evidence-in-chief by way of affidavit prior to trial to a requirement, subject to variation by the Court.